On September 9, 2020, Governor Newsom signed Assembly Bill 1867 (“AB 1867”) which has three new laws combined into one bill. The bill covers supplemental sick leave requirements, a pilot mediation program for small employers, and mandated hand washing requirements for food workers. Moreover, the laws included in AB 1867 go into effect immediately.

Food Sector Workers Supplemental Sick Leave

When Governor Newsom issued Executive Order (“EO”) N-51-20 mandating supplemental paid sick leave for food sector workers, it was uncertain whether the governor had the authority to issue such an EO. AB 1867 resolved those concerns by adopting many parts of the governor’s EO and making the law retroactive to April 16, 2020, when the EO was issued. AB 1867 also clarifies the definition of a “food facility” to include all sections of Health and Safety Code Section 113789. Previously, the Food Sector Worker EO only listed subsections (a) and (b) of the code, leaving out subsection (c) which stated what did not qualify as a “food facility.” AB 1867 includes subsection (c) providing clarity to whether an employer is covered.

Who is a “Food Sector Worker”?

AB 1867’s definition of food sector worker is similar to that of the Food Worker Sick leave EO. A major change to the definition of eligible food sector worker is that a  worker no longer must qualify as an essential critical infrastructure worker.

Another change in AB 1867 from the Food Sector Worker EO was that the EO set to expire at the time of expiration of any statewide stay-at-home orders issued by the State Public Health Officer. However, AB 1867 expires in line with the federal Families First Coronavirus Response Act (“FFCRA”) on December 31, 2020, or upon the expiration of any federal extension of the Emergency Paid Sick Leave Act established by the FFCRA, whichever is later.

Importantly, AB 1867 also made clear that employers who had provided supplemental sick leave since the pandemic may take a credit for their previously provided supplemental sick leave if it is equivalent or exceeds AB 1867’s requirements.

What Time Off Is Provided?

Like the Food Worker Sick leave EO, AB 1867 requires covered employers to provide full-time employees eighty (80) hours of paid time off and part-time employees a proportionate time off for the following reasons:

• The food sector worker is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
• The food sector worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19.
• The food sector worker is prohibited from working by the food sector worker’s hiring entity due to health concerns related to the potential transmission of COVID-19.

Unlike the Families First Coronavirus Response Act (“FFCRA”) and other supplemental paid sick leave ordinances in California,  AB 1867 does not provide leave for those caring for a family member who is quarantined or sick or caring for a minor child whose school or childcare has closed due to COVID-19.

COVID-19 Supplemental Paid Sick Leave Law

Additionally, AB 1837 establishes COVID-19 supplemental paid sick leave for workers outside of the food sector, including certain employees employed by private businesses with 500 or more employees in the United States.

The new law also covers employees who were excluded from coverage under the FFCRA as a health care provider or emergency responder. Food sector workers are excluded if they already qualify for the food sector worker benefit discussed above. There are also unique rules regarding fire departments and forestry in the new law.

Generally, eligible employees can take this new COVID-19 supplemental paid sick leave for similar reasons as discussed above for food sector workers and at similar rates.

The law requires the Labor Commissioner to make publicly available a model notice for purposes of complying with the posting requirements. The law permits notice to be provided to employees by electronic means in lieu of posting, only if a hiring entity’s covered workers do not frequent a workplace.

The new COVID-19 supplemental paid sick leave may expire on December 31, 2020, or upon the expiration of any federal extension of the Emergency Paid Sick Leave Act established by the FFCRA, whichever is later.

Handwashing

The new law requires a food sector worker working in any food facility to be permitted to wash their hands every 30 minutes and additionally as needed. This codified a similar requirement set forth in the Food Sector Worker EO.

Small Employer Family Leave Mediation

Assembly Bill 1867 also requires the Department of Fair Employment and Housing (“DFEH”) to create a small employer family leave mediation pilot program for employers with 5 to 19 employees. The pilot program would authorize a small employer or the employee to request to participate in mediation through the DFEH’s dispute resolution division after notice. The bill prohibits an employee from pursuing civil action until the mediation is complete if an employer or employee requests mediation. The bill also tolls the statute of limitations for the employee, including for additional related claims, from when a request to participate in the program is received until the mediation is complete or ended. These provisions of the bill would be repealed on January 1, 2024.